Leah v Chief Commissioner of State Revenue

NCAT Administrative and Equal Opportunity|2024-06-04

Background

The applicant and her husband migrated to Australia in 2015 to assist their son in caring for his children. Initially, the applicant and her husband were each issued with a Visitor (class FA) visa that was valid April 2016.
The applicant and her husband departed Australia in March 2016 and returned in June 2016.
On their return to Australia in June 2016, the applicant and her husband each applied to the Federal Government Department of Immigration and Border Protection (Immigration Department) for a permanent Aged Parent (Residence) visa.
On 17 June 2016, the applicant and her husband received notification from the Immigration Department that their respective application for a permanent Aged Parent (Residence) visa had been assessed to be valid and that a bridging visa had been granted to each of them. In their respective Notice of a bridging visa grant the applicant and her husband were advised: A Bridging visa (class WA) has been granted to the applicant listed in the table below to allow you to remain in Australia during the processing of your application for a Aged Parent (Residence) (class BP) Aged Parent (subclass 804) visa.
On 13 June 2019, the applicant and her son executed, as purchasers, the contract for sale of land (the property) the subject of this application. The applicant agreed to purchase a 35% share of the property, and her son purchased 65%.
On 6 August 2019, the Foreign Investment Review Board gave its approval for the applicant to purchase Australian residential real estate. The conditions the subject of that approval are: - The property is vacant at settlement. - You use the property as your principal place of residence in Australia. - If the property ceases to be your principal place of residence, or if you cease being a temporary resident within the meaning of the Foreign Acquisitions and Takeovers Act 1975, then you sell the property within 6 months. - You don't rent out any part of the property. - You register your purchase on the ATO Land and Water Register no later than 30 days after settlement. …

Relevant legislation

The surcharge purchaser provisions in the Duties Act and the surcharge land tax provisions in the LT Act were inserted into these Acts in 2016: see State Revenue Legislation Amendment (Budget Measures) Act 2016 (NSW) Schedule 1 clause [14] and Schedule 2 clause [1].
However, before dealing with these provisions in the Duties Act and the LT Act it is convenient to set out the relevant provisions of the Commonwealth FATA in so far as they relate to the meaning of a 'foreign person'.

FATA - meaning of the term 'foreign person'

The phrase 'foreign person' is defined in section 4 of the Foreign Acquisition and Takeovers Act 1975 (Cth) (FATA) and relevantly provides: "foreign person" means: (a) an individual not ordinarily resident in Australia; or (b) a corporation in which an individual not ordinarily resident in Australia …
The phrase 'ordinarily resident' in Australia is defined in section 5 of the FATA in so far as it relates to an individual who is not an Australian citizen and relevantly provides as follows: Meaning of ordinarily resident (1) An individual who is not an Australian citizen is ordinarily resident in Australia at a particular time if and only if: (a) the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time; and (b) at that time: (i) the individual is in Australia and the individual's continued presence in Australia is not subject to any limitation as to time imposed by law; or …
There is no dispute that, at the relevant taxing dates, the applicant satisfied section 5(1)(a) of the FATA. The question is whether she satisfies section 5(1)(b)(i) of that Act in that, as at the relevant taxing date, the applicant's continued presence in Australia was not subject to any limitation as to time imposed by law.

Duties Act

As noted above, surcharge purchaser duty is charged under Chapter 2A of the Duties Act 1997 (NSW) (Duties Act) on certain dutiable transactions (including an agreement for the sale or transfer of residential-related property in New South Wales) to a 'foreign person': Duties Act sections 104J, 104G, 104K and 104L (1)(b)(i).
There is no dispute that the property purchased by the applicant is resident-related property: Duties Act section 104K.
The phrase 'foreign person' is defined in section 104J to mean: 104J Meanings of "foreign person" and "foreign trustee" (1) In this Chapter - foreign person means a person who is a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth, as modified by this section. … (2) The definition of foreign person in the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth is modified as follows - (a) an Australian citizen is taken to be ordinarily resident in Australia, whether or not the person is ordinarily resident in Australia under that definition, (b) a New Zealand citizen who holds a special category visa, within the meaning of section 32 of the Migration Act 1958 of the Commonwealth, at any particular time is taken at that time to be an individual whose continued presence in Australia is not subject to any limitation as to time imposed by law.
Section 104Q provides that liability for surcharge purchaser duty arises in the same way as it arises in respect of duty charged under section 12 of Chapter 2 of the Duties Act. Section 12(2) provides that where a transfer of dutiable property is affected by an instrument (for example a contract for sale of land), liability for duty arises when the instrument is first executed. And the person liable to pay the surcharge purchaser duty is the transferee who is a foreign person: Duties Act section 104R.
Section 104ZKA of the Duties Act contains an exemption from surcharge purchaser duty where: 1. the transferee who is a foreign person is a 'permanent resident' when the liability for duty arises under Chapter 2: Duties Act section 104ZKA(2)(a); and 2. the respondent is satisfied that the transferee intends to use and occupy the residential land to which the residential-related property relates as a principal place of residence in accordance with the residence requirement in section 104ZKA(4): Duties Act section 104ZKA(2)(b); and 3. the residential land is used and occupied by the transferee as his or her principal place of residence for a continuous period of at least 200 days within the first 12 months after the liability date: Duties Act section 104ZKA(2)(b) and (4).
The phrase 'permanent resident' is defined in the Dictionary at the end of the Duties Act as follows: permanent resident means - (a) the holder of a permanent visa within the meaning of section 30 of the Migration Act 1958 of the Commonwealth, or (b) a New Zealand citizen who holds a special category visa within the meaning of section 32 of the Migration Act 1958 of the Commonwealth.
As noted above, the meaning of the phrase 'permanent resident' is cross-referenced to the Migration Act 1958 (Migration Act). I have dealt with the relevant provisions of that Act below.

Land Tax Act

As noted above, surcharge land tax is an annual tax and payable under section 5A(1) of the Land Tax Act 1956 (NSW) (LT Act) in respect of residential land owned by a foreign person.
Surcharge land tax is based on the ownership of 'residential land' owned by a 'foreign person' as at the taxing date (being midnight on 31 December in any year) and payable under the LT Act on 1 January of the immediately following year: LT Act section 5A(2).
Section 5B of the LT Act also contains an exemption from surcharge land tax where (see LT Act sections 5B(1) and (2)): 1. the owner who is a foreign person is a 'permanent resident' as at the taxing date (being midnight on 31 December of the year immediately before the relevant land tax year), 2. the respondent being satisfied that, during the land tax year, the owner intends to use and occupy the land as the principal place of residence in accordance with the residence requirement; and 3. the land is used and occupied by the owner as the person's principal place of residence for a continuous period of at least 200 days in the land tax year.
In Azam Mohamed & Sarah Azam v Chief Commissioner of State Revenue [2023] NSWCATAD 38 (Azam Mohammed) at [55], the Tribunal held that the phrase 'permanent resident' as used un section 5B of the LT Act should be construed as having the same meaning as used in the Duties Act - which cross-references to section 30 of the Migration Act. I agree with the Tribunal's conclusion and the reasoning given for that conclusion.
I have dealt with other relevant provisions of the Migration Act below.

Applicant's case

In her written submissions counsel for the applicant submits that previous decisions of the Tribunal had fallen into error in: 1. construing the phrase 'limitation as to time by law' within the meaning of sections 4 and 5 of the FATA, as incorporated in Chapter 2A of the Duties Act, and 2. repeatedly relying on the remarks of Crofts J, at [96], in Li v So [2019] VSC 515. These remarks, counsel for the applicant contends to be obiter and a misunderstanding of the application of section 30(2) of the Migration Act 1958 (CT) (Migration Act).
I understand the applicant to contend that the phrase 'limitation as to time by law', is concerned with a specific time limitations such as a specific date. That is, it is a reference 'to a limitation which is expressed by reference to a particular period of time' and not a reference to the occurrence of a particular event.
The applicant noted that the Explanatory Note to the State Revenue Legislation Amendment (Budget Measures) Act 2016 (NSW) described a foreign person as 'an individual not ordinarily resident in Australia', and at [14(ii)] went on to submit: … [This is consistent] with the natural meaning of the words in s 5 of the FATA and the interpretation for which the Applicant contends. A person who is constrained by a limitation expressed by reference to an enumerated and clear period of time - who is under a legal obligation to leave Australia at some point in the future - is clearly a person who is not "ordinarily resident in Australia". However, a person who is the holder of a bridging visa which does not have such a limitation and which is expressed to be dependent on a future event which may or may not ever take place, and who under the terms of the limitation cannot leave Australia, is in fact a person who is ordinarily resident in Australia because such a person is in no way, shape or form subject to a time limit imposed by law.
The applicant rejected the position of the respondent, that only holders of a permanent visa may stay in Australia indefinitely.
Instead, as I have noted above, the applicant's position is that Chapter 2A of the Duties Act and section 5A of the LT Act only applies to a person who is the holder of a temporary visa falling under section 30(2)(a) of the Migration Act (a temporary visa for a specified period). It was submitted that, for the purpose of Chapter 2A of the Duties Act and section 5A of the LT Act, where the person is the holder of a temporary visa falling under section 30(2)(b) (a specified event) or a temporary visa under section 30(2)(c) (specified status), that a visa of this kind is not, on its face, limited by time.
The applicant noted that the holder of a Partner (Provisional) visa (subclass 309 or 820), as referred to in Ruling G 009 of the respondent is entitled to remain in Australia indefinitely, as is the applicant, by reason of her 'immigration status and nature of [her] existing and underlying prospective substantive visa will almost certainly forever more to be "ordinarily resident in Australia'''.
In support of her case, the applicant relied on the 28 May 2024 Visa Details Check (VEVO), the end of which stated the following: Period of stay: Indefinite Visa type: Bridging

Respondent's case

The respondent submitted that the requirement of being 'ordinarily resident' is solely governed by the words of section 5 in the FATA, as modified by section 104J of the Duties Act and adopted by section 2A of the LT Act.
There are two requirements in section 5 of the FATA and both requirements must be met for an individual who is not an Australian citizen to be 'ordinarily resident' in Australia at the relevant time (the relevant taxing date).
As noted above, it is accepted that the applicant met the 200-day requirement of section 5(1)(a) of the FATA. However, the respondent submits that the applicant has failed to establish that she satisfies the requirement in section 5(1)(b) of the FATA, because she has at all relevant times been a temporary visa holder and not a permanent visa holder.
The respondent submitted, citing Li v So [2019] VSC 515 (Li v So) at [96], that on its proper construction section 5(1)(b) of the FATA is a limitation imposed on a temporary visa falling within section 30(2) of the Migration Act - namely, a temporary visa that permits the holder to remain in Australia during a specified period, until a specified event happens or while the holder has a specified status. That is, in the words of Croft J in Li v So: … [irrespective] of the precise event which terminates the holder's right to remain in Australia, all three conditions render the holder subject to a temporal limitation. Such is inherent in the very nature of a 'temporary visa.
The respondent went on to note that the Tribunal, when considering the meaning of 'ordinary resident' in revenue matters, has adopted the same conclusion reached in Li v So: for example see Hashim v Chief Commissioner of State Revenue [2020] NSWCATAD 67 at [45]-[46]; van der Zanden v Chief Commissioner of State Revenue [2022] NSWCATAD 283 (van der Zanden) at [38]-[40]; Galle v Chief Commissioner of State Revenue [2022] NSWCATAD 285 at [23]; Shah v Chief Commissioner of State Revenue [2022] NSWCATAD 311 at [57]; Azam Mohamed at [36]; and Guimaraes v Chief Commissioner of State Revenue [2024] NSWCATAD 95.

Consideration

While I sympathise with the situation the applicant finds herself, I am not persuaded by any of the arguments put forward on her behalf as to the proper construction of the meaning of 'foreign person' in section 104J of the Duties Act. Nor do I accept that the Tribunal has erred in its application of that section.
As noted by the Tribunal in Azam Mohammed, at [56], the Explanatory Note to the State Revenue Legislation Amendment (Budget Measures) Bill 2016 provided the following explanation as to the introduction of a surcharge purchaser duty and a surcharge land tax: The object of this Bill is to implement certain revenue-related measures in the 2016-17 State budget. The Bill: (a) amends the Duties Act 1997 to impose a surcharge duty of 4% in relation to the acquisition of interests in residential land by foreign persons and to remove the off the plan duty concession in the case of foreign persons, and (b) amends the Land Tax Act 1956 to impose surcharge land tax of 0.75% on residential land owned by foreign persons, and … The Bill defines a foreign person to have the same meaning as in the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth (which generally includes an individual not ordinarily resident in Australia, a corporation in which such an individual has a substantial interest, a trustee of a trust in which such an individual holds a substantial interest or a foreign government). The definition is modified to ensure that Australian citizens are not foreign persons (wherever they reside) and that New Zealand citizens holding special category visas are not foreign persons if they have been in Australia for at least 200 days in the previous 12 months."
As noted above: 1. section 104J(1) of the Duties Act defines the phrase 'foreign person' to be a person who is a foreign person within the meaning of the FATA as modified by section 104J(2) of the Duties Act; 2. section 4 of the FATA defines the phrase 'foreign person' to include an individual not 'ordinarily resident' in Australia; 3. section 5 of the FATA sets out the circumstances where, at a particular time, an individual who is not an Australian citizen is 'ordinarily resident' in Australia; and 4. the modifications in section 104J(2) of the Duties Act do not apply in this application as the applicant is not an Australian citizen or a New Zealand citizen. Instead, she is not an Australian citizen and to succeed in her application she must establish that, as at the taxing date she: 1. was 'ordinarily resident' in Australia as defined in section 5 of the FATA (that is not a foreign person); or 2. in the event she is a foreign person she is a 'permanent resident' and exempt from surcharge purchaser duty under section 104ZKA of the Duties Act and exempt from surcharge land tax under section 5B of the LT Act.

Was the applicant 'ordinarily resident' in Australia as at the taxing dates?

As I have noted, there are two aspects to section 5 of the FATA, and both need to be satisfied for the applicant to be 'ordinarily resident' in Australian at the relevant taxing date.
There is no dispute that the applicant satisfies the first aspect of section 5, namely - having been in Australia for 200 or more days in the 12 months preceding the relevant date: FATA section 5(1)(a).
It is the second aspect which is in dispute, namely - whether the applicant's continued presence in Australia is not subject to any limitation as to time imposed by law: FATA section 5(1)(b).
The continued presence in Australia of a non-citizen is governed by the Migration Act: see Migration Act section 4.
The relevant provisions of the Migration Act and the Migration Regulations were considered by the Tribunal in Azam Mohammed at [32]-[36] and while the applicant has not contended that these were incorrectly referred to or applied, for completeness I will deal with them briefly in so far as they are relevant to this application.

Migration Act

Section 30 of the Migration Act provides that there are two kinds of visas that are available to non-citizens as follows: (1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely. (2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain: (a) during a specified period; or (b) until a specified event happens; or (c) while the holder has a specified status.
The phrase 'specified period' is defined in section 28 to include the period until a specified date.
In Dalton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 141 at [14], the Administrative Appeals Tribunal of Australia (AATA) accepted that section 30 of the Migration Act: … [draws a clear] distinction between two mutually exclusive categories: permanent visas, so called, and temporary visas, so called. It may seem odd that a citizen of New Zealand who enters and may remain here until the end of his or life has a "temporary" visa only; but it is not necessary to consider any limits in the power under section 30(2) to prescribe temporary visas. For the purposes of conducting my review, I need only conclude that Mr Dalton has never held a "permanent visa" so called. …
The AAT found that Mr Dalton had never held a 'permanent visa' and had always held a 'temporary visa'.
Section 31(1) and (2) of the Migration Act provide that there are to be prescribed classes of visa together with those provided for within the Act, which includes bridging visas at section 37: Migration Act section 31(2)(g).
Section 31(3) provides that the regulations may prescribe criteria for a visa or visas of a specified class, which includes a bridging visa.
Section 37 of the Migration Act provides: Bridging visas There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.
Section 73 in Subdivision AF provides: Bridging visas If the Minister is satisfied that an eligible non - citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non - citizen to remain in, or to travel to, enter and remain in Australia: (a) during a specified period; or (b) until a specified event happens. Note: A bridging visa may be granted to an eligible non - citizen on application, or without an application, made by the eligible non - citizen (see section 45).
Section 68(1) of the Migration Act provides that a visa has effect as soon as it is granted. And section 82 of the Migration Act prescribes when a visa cease to have effect. That section relevantly provides: When visas cease to be in effect (1) A visa that is cancelled ceases to be in effect on cancellation. (2) A substantive visa held by a non - citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non - citizen comes into effect. … (3) A bridging visa held by a non - citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non - citizen comes into effect. … (7A) A bridging visa permitting the holder to remain in, or to travel to, enter and remain in, Australia until a specified event happens, ceases to be in effect the moment the event happens. (8) A visa to remain in, but not re - enter, Australia that is granted to a non - citizen in Australia ceases to be in effect if the holder leaves Australia. (9) This section does not affect the operation of other provisions of this Act under which a visa ceases to be in effect (such as sections 173 and 174).
Under regulation 2.21B of the Migration Regulations 1994, a Bridging C (Class WC) can be granted without an application if a valid application for a visa has been made.

Visa Entitlement Verification Online (VEVO)

In Azam Mohammed the Tribunal had before it the VEVOs for each applicant in that case. Regarding the VEVO of each applicant, the Tribunal said (at [39] to [44]) the following: 39 I note that the VEVOs for each of the Applicants state that the bridging visas are for an "indefinite" stay period. The actual bridging visas or copies of them are not before the Tribunal (unlike the position in van der Zanden). 40 The word "indefinite" has more than one meaning. According to the Macquarie Dictionary (2023) "indefinite" means "not definite; without fixed or specified limit; unlimited; not clearly defined or determined". In my view, the use of the word "indefinite" on the VEVO is not to be conflated with the language in 30(1) of the Migration Act for permanent visas. 41 A reading of the relevant provisions in the Migration Act in their context together with the Migration Regulations differentiates the conditions for permanent resident visas and temporary visas (such as bridging visas). 42 As the bridging visas are temporary visas under s 30(2), the use of the word "indefinite" on the VEVO simply means that the period of time for which the Applicants are permitted to stay in Australia on their bridging visas is not pre-determined or is unspecified (consistent with a temporary visa under s 30(2)(b)), unlike other types of temporary visas that may specify a precise date on which the visa ends within s 30(2)(a). 43 The fact that the VEVO does not specify a particular date on which the bridging visa expires does not mean that there is not a limitation of time imposed under the Migration Act. Rather the limitation as to time exists but is unable to be determined when the visa issues for the reason that one of the specified events referred to the Migration Regulations first needs to occur before the bridging visa comes to an end. By their nature, the time at which those events may occur are not able to be predetermined; but once the event occurs, it triggers the 28 day (or 35 day) period. 44 In my view, despite the unfortunate use of the word "indefinite" on the VEVO, bridging visas have a limitation as to time which is triggered by the happening of one of the prescribed events in the Migration Regulations. …
In Rudd and Noor v Commissioner of State Revenue (Review and Regulation) [2022] VCAT 188 (Rudd and Noor) and Shaikh and Anderson v Commissioner of State Revenue (Review and Regulation) [2022] VCAT 554 (Shaikh and Anderson) the Victorian Civil and Administrative Tribunal (VCAT) considered whether a VEVO Entitlement Check had any legal status under the Migration Act for the purpose of determining whether the applicant was a 'foreign purchaser' under the Victorian Duties Act 2000 (Vic) (Victorian Act) and liable to additional duty under section 28A of that Act.
While the phrase 'foreign purchaser' in the Victorian Act is not defined by reference to the meaning of a 'foreign person' in the FATA. Instead, it is defined in section 3 of the Victorian Act to include a 'foreign natural person' and the phrase 'foreign natural person' is also defined in section 3 of that Act to be a natural person who is not: 1. an Australian citizen, or 2. the holder of a permanent visa within the meaning of section 30(1) of the Migration Act, or 3. a New Zealand citizen who is the holder of a special category visa within the meaning of section 32(1) of the Migration Act.
In issue in Rudd and Noor and Shaikh and Anderson was whether the applicants were holders of a 'permanent visa' under the Migration Act. If so, they were not liable for additional duty under the Victorian Act. In support of their case, the applicants each relied on the on-line VEVO Entitlement Check they had obtained, which said that the period of their respective stays was 'indefinite'.
In Rudd and Noor at [19], and [25], VCAT said (foot notes omitted): 19 The Commissioner submits that any suggestion in the VEVO Entitlement Check for Dr Noor that she was entitled to stay for an indefinite period (and so might be regarded as having a permanent visa) is 'irrelevant to the legal character of the [Provisional Partner Visa]' she held because that check has 'no legal status under the Migration Act and ... Migration Regulations. In this regard, the Commissioner relies on the Federal Circuit Court decision in Atta v Minister for Immigration (Atta), where Judge Baird observed that Mr Atta did not hold a substantive visa and that '[w]hether or not the VEVO record represented otherwise, does not change that legal status'. … 25 I accept the submission of the Commissioner that the results of the VEVO Entitlement Check, which referred to an 'indefinite' period of stay, cannot change the legal outcome, having regard to the decision in Atta.
A similar finding was made in Shaikh and Anderson, at [44].
While the meaning of a 'foreign person' in the NSW Duties Act differs to that contained in the Victorian Act, I respectfully agree that the inclusion of the word 'indefinite' against the words 'period of stay' in an on-line VEVO Entitlement Check does not alter the status of a temporary visa. As explained by the Tribunal in Azam Mohammad, at [43], it is merely a statement to the effect that, as at the date of the VEVO Entitlement Check, the period of stay of the person to whom the Check relates has not yet been determined, which is consistent with the purpose for which a Check is sought and made.
That purpose, as explained in the introductory information of the pro-forma VEVO Check form, is to provide the current visa details of the person to whom the Check relates (that is, a non-Australian citizen) and the conditions associated with the particular visa held by that person, including whether the visa gives the person the right to work while in Australia. Such information is important for any prospective employer of a visa holder as employing a visa holder whose visa does not entitle him/her to work is an offence - hence it is on this bases that prospective employers can register with the Immigration Department to make their own on-line VEVO checks of prospective employees who are not Australian citizens.
In this application the applicant has not raised an issue of estopple, and in my view appropriately so.
In conclusion, for the reasons set out above, I reject the applicant's argument that her on-line VEVO Entitlement Check, which noted that her period of stay is 'indefinite', supports her contention that her continued presence in Australia is not subject to any limitation as to time imposed by law.

Meaning of 'limited as to time imposed by law' in section 5(1)(b)(i) of the FATA

Contrary to the submission of the applicant section 5(1)(b)(i) of the FATA is not expressed in terms of an individual's continued presence in Australia being subject to any 'time limit'. Instead, it is expressed in terms of the individual's presence being subject to any 'limitation as to time imposed by law'.
Nor am I persuaded by the applicant's contention that, on its proper construction, the phrase a 'limitation as to time imposed by law' in section 5(1)(b) of the FATA only applies to a person who is the holder of a temporary visa of the kind prescribed in section 30(2)(a) of the Migration Act (a visa to remain in Australia during a 'specified period').
This is an argument that was rejected by Croft J in Li v So.
In that case, Mr So, the defendant, alleged that Ms Li should be denied equitable relief as her claim, in equity, arose from an agreement she had made with Mr So, in 2010, to purchase a Victorian property. Mr So's allegation was based on Ms Li being a 'foreign person' at the time the agreement was entered, and her failure to provide the Treasurer with the requisite notice of the purchase under sections 21A and 26A of the FATA, as they applied at the time. Ms Li acknowledged in her pleadings that she was not an Australian citizen but was the holder of a temporary visa at that time. What kind of temporary visa was not disclosed. However, Ms Li argued that Mr So had failed to establish that she was a 'foreign person' as defined in the FATA, because he had failed to establish that her presence in Australia was 'subject to a time limit imposed by law': see Li v So at [95]. In this regard Ms Li noted that section 30(2) of the Migration Act provided three possible bases by which a temporary visa may be limited and only one of these (section 30(2)(a)) provided for a time limit, whereas the others did not.
In his decision, Croft J appears to have adopted the 'subject to a time limit imposed by law' test articulated by Ms Li and at [96], said: 96 … [I do not] accept the plaintiff's submission regarding the appropriate characterization of s 30(2)(a) of the Migration Act 1958 (Cth). I consider all three conditions contemplated by s 30(2)(a) render the holder of a temporary resident visa "a person whose present in Australia is subject to a time limit imposed by law". Irrespective of the precise event which terminates the holder's right to remain in Australia, all three conditions render the holder subject to a temporal limitation. Such is inherent in the very nature of a "temporary resident visa".
I agree with the applicant that these remarks/observations of Croft J were made in passing, as they were made in the context of an ancillary issue which Croft J was not required to decide as his Honour had determined that Ms Li had not proven her substantive claim. At the same time, for the reasons that follow, I do not accept that the remarks/observations of Croft J were wrong. [1]
In my opinion, the approach that is to be taken to the meaning of 'foreign person' in section 104J of the Duties Act, is to first and foremost construe the meaning of 'foreign person' in the FATA and it is to that meaning which the modifications in section 104J(2) must be applied.
In this regard, the starting point is the FATA Act, its objects and purpose, and the meaning of 'foreign person' in section 4 of the FATA.
The objects and purpose of the FATA is to regulate and oversee foreign investment in Australia (including an investment to acquire an interest in Australian land) by persons (individuals and corporations) who are not 'ordinarily resident' in Australia (see FATA section 3 - simplified outline of the Act). The Act makes provision for the notification of intended significant acquisitions by a foreign investor and the review of the proposed acquisition to decide whether the proposed acquisition is in the national interest.
Consistent with this object and purpose, section 4 of the FATA, defines the term 'foreign person' to include an individual not ordinarily resident in Australia. This is a broad definition, and in my opinion, includes any individual not ordinarily resident in Australia regardless of whether that individual is an Australian citizen or not an Australian citizen.
The FATA does not set out the circumstances when an Australian citizen is or is not ordinarily resident in Australia. However, for the purpose of surcharge purchaser duty under the Duties Act and surcharge land tax under the LT Act, section 104J(2)(a) of the Duties Act modifies the meaning of 'foreign person' in section 4 of the FATA to deem an Australian citizen to be ordinarily resident in Australia regardless of whether the person is or is not ordinarily resident in Australia. The effect of this modification is to exclude an Australian citizen from the operation of Chapter 2A of the Duties Act and section 5A of the LT Act.
As I have already noted, in defining when a non-Australian citizen is ordinarily resident in Australia, section 5 of the FATA predicates this definition by the words, at a particular time. It is accepted that, for the purpose of Chapter 2A of the Duties Act and section 5A of the LT Act, the 'particular time' in section 5 of the FATA is the relevant taxing date as prescribed in section 104Q of the Duties Act and section 5A(2) of the LT Act.
As noted above, there are two aspects to section 5 of the FATA, and a non- Australian citizen must satisfy both aspects to be 'ordinarily resident' in Australia. If both are not satisfied, then the non-Australian citizen is a 'foreign person' under the FATA.
For the purpose to the Duties Act and the LT Act, to satisfy the second aspect in section 5(1)(b)(i) of the FATA a non-Australian citizen must establish that: 1. at the relevant taxing date, the non-Australian citizen was in Australia (i.e. lawfully in Australia); and 2. as at the relevant taxing date, the non-Australian citizen's continued presence in Australia was not subject to any limitation as to time imposed by law.
I my opinion, the phrase 'limitation as to time imposed by law' should be given its ordinary meaning in the context it appears in section 5(1)(b)(i) and having regard to the overall object and purpose of the FATA Act.
First, the limitation as to time imposed by law is one that relates to a non-Australian citizen's continued presence in Australia as at the taxing date. The continued presence of a non-Australian citizen lawfully in Australia is governed by the Migration Act, the object of which is to regulate, in the national interest, the coming into, and presence in Australia of non-citizens: Migration Act section 4(1). To advance that object, that Act provides for visas which permit non-citizens to enter or remain in Australia and that these are the only source of such a right: Migration Act section 4(2).
As noted above, section 30 provides that there are two kinds of visa, a permanent visa to remain in Australia 'indefinitely' and a temporary visa to remain in Australia 'during a specified period', 'until a specified event happens', or 'while the holder has a specified status'.
It has been accepted, as had been indicated by Croft J in Li v So, that the continued presence in Australia of a non-Australian citizen who is the holder of a temporary visa issued under the Migration Act is limited as to time imposed by law, because a temporary visa only permits the non-Australian citizen to continue to remain in Australia for the period of time specified in the visa, until such time as specified event in the visa happens, or until such time the holder of the visa retains his or her status as specified in the visa.
While the Migration Act only provides for two kinds of visa, section 31(1) of that Act provides that there are to be prescribed classes of visa together with the classes provided for in the sections listed in section 31(2). As noted above, included in this list is section 37 (a bridging visa). Also included in the list is section 32 (a special category visa).
Section 32(1) provides that a 'special category visa' is a temporary visa. The criterion for such a visa includes (a) a non-citizen who is a New Zealand citizen who holds a current New Zealand passport and is neither a behaviour concern non-citizen nor a health concern-non citizen; (b) a person as declared in the regulations; or (c) a person in a class of persons as declared in the regulations.
I have referred to this section only because, section 104J(2)(b) of the Duties Act is a modification of the application of section 5(1)(b) of the FATA to a temporary visa held New Zealand citizens, that is a 'special category' class visa issued under section 32(2)(a) of the Migration Act. That is, section 104J(2)(b) provides that the continued presence in Australia of a New Zealand citizen who is holder of this class of visa is to be taken to be not subject to any limitation as to time imposed by law.
While I accept that the remarks/observations of Croft J in Li v So to be correct, given the complexity of the Migration Act, ultimately it is a question of fact, based on the terms of the specific visa, as to whether the non-citizen taxpayer's continued presence in Australia is not subject to any limitation as to time imposed by law. [2] And the onus is on the non-citizen taxpayer to prove that he or she is not subject to any such limitation where it is contended that he or she is ordinarily resident in Australia.

Was the applicant's continued presence in Australia not subject to a limitation as to time imposed by law?

As I have already noted, that a copy of pages 1 and 3 of the applicant's Notice of a grant of a bridging visa is before the Tribunal. It was issued on 15 June 2016 and expressly states that she had been granted a bridging visa to allow her 'to remain in Australia during the processing' of her application for a Aged Parent (Residence) visa.
It is not disputed that, as at the relevant taxing dates, the applicant's visa was in effect and has remained in effect since that time.
The first page of the applicant's bridging visa also stated the following: This bridging visa allows you to remain lawfully in Australia until 28 calendar days after you are notified of a decision on your application for a Aged Parent (Residence) (class BP) Aged Parent (subclass 804) visa. If your Aged Parent (Residence) (class BP) Aged Parent (subclass 804) visa application is refused and you apply for a merits review of that decision within the required timeframe, this …
While the applicant contended that she was likely to be granted an Aged Parent (Residence) visa, this is not reflected in the Notice of her bridging visa. On the contrary, it contemplates the possibility of her application for a Aged Parent (Residence) visa being refused, and if that were so she was allowed to remain lawfully in Australia for a maximum 28 calendar days. Alternatively, if she made an application to have the refusal decision merits review, her bridging visa would remain in effect until that merits review had been determined.
Again, it is not disputed that, as at the relevant taxing dates, the applicant's lawful presence in Australia was based on the terms of her bridging visa that had been issued under section 37 of the Migration Act. Accordingly I find that, having regard to the terms of the applicant's Notice of grant of a bridging visa, and the relevant provisions of the Migration Act, I find that, as at the relevant taxing dates, the applicant's continued presence in Australia was subject to a limitation as to time imposed by law because her bridging visa was not indefinite and would end in any one of the following circumstances: 1. if the applicant departed Australia during the time her application for an Aged Parent (Residence) visa was being processed, her bridging visa would end as her bridging visa did not make provision for the applicant to re-enter Australia if she had departed; 2. if a decision were to made to grant the applicant her application for a Aged Parent (Residence) visa, her bridging visa would cease to be in effect: Migration Act section 82(3); and 3. in the event the applicant's application for an Aged Parent (Residence) visa was refused, her bridging visa would also cease to be in effect: Migration Act section 82(7A). That cessation would of course be subject to any merits review right the applicant had and exercised. However, the outcome of such review rights would ultimately result in the applicant's bridging visa ceasing to be in effect under sect 82(3) or 82(7A).
Accordingly, I find that the applicant was, as at the relevant taxing dates, a foreign person for the purposes of Chapter 2A of the Duties Act and section 5A of the LT Act.

Do the exemptions in section in section 104ZKA of the Duties Act and section 5B of the LT Act apply?

While it is accepted that the applicant: 1. intended to use and occupy the property as her principal place of residence when she executed the contract for the sale of the property; 2. did use and occupy the property as her principal place of residence for a continuous period of at least 200 days within the first 12 months after she executed the contract for the sale of the property; 3. did intend and did use the property as her principal place of residence for a continuous period of at least 200 days during the 2020, 2021, 2022 and 2023 land tax years.
However, as the applicant was not a permanent resident, as defined in the dictionary at the end of the Duties Act, she cannot avail herself of the exemptions from surcharge purchaser duty in section 104ZKA of the Duties Act or surcharge land tax in section 5B of the LT Act. These exemptions, as I have noted above, are only available to a foreign person who is the holder of a permanent visa under section 30 of the Migration Act and a New Zealand citizen who holds a special category visa within the meaning of section 32 of that Act. The latter, as I have noted, is a temporary visa, based on the status of the visa applicant.
As pointed out by the applicant, the respondent's Revenue Ruling G009 in effect provides an additional modification to the meaning of 'foreign person' for an individual who holds a Partner (provisions) visa (subclass 309 or 820) and who meets the 200-day residence requirement in section 5(1)(a) of the FATA. The Ruling explains that, even though a Partner (provisional) visa is limited as to time by law, such Partner (provisional) visa holders are to be treated in the same way as a permanent visa holder. Again, this does not apply to the applicant.

Summary of findings

I re-iterate, it is not disputed that as at the date of hearing the applicant has continued to lawfully remain in Australia for more than eight years under the grant of a bridging visa pending the determination of her application for a Aged Parent (Residence) visa. In June 2019, the applicant and her son, an Australian citizen, decided to purchase the property the subject of this application, with the intention of the property being their respective principal place of residence. In August 2019, the Foreign Investment Review Board advised that applicant that her proposed purchase met the requirements of the FATA and her application was approved subject to specified conditions (e.g. the property is used as her principal place of residence). The property has been the applicant's principal place of residence for almost five years, since September 2019. And, as at the date of hearing the applicant's application for a Aged Parent (Residence) visa had not been determined.
Notwithstanding the applicant's continued presence in Australia, for the reasons set out above, I have found that as at the relevant taxing dates: 1. the applicant was a foreign person as her continued presence in Australia was subject to a limitation as to time imposed by law; and 2. the applicant was not a permanent resident, as defined in the Dictionary to the Duties Act, and therefore not exempt from surcharge purchaser duty under Part 2A of the Duties Act or surcharge land tax under section 5A of the LT Act.

Conclusion and orders

Based on my findings, I find that the applicant has failed to establish the assessment of the respondent, the subject of this application are incorrect. Accordingly, I make the following order: 1. The assessments of the Chief Commissioner the subject of this application are confirmed.

Endnotes

At the relevant time, the meaning of the phrase 'foreign person' in so far as it related to an individual was contained in section 4(6)(a) of the FATA. And section 5A in that Act also defined what was meant by the phrase 'ordinarily resident in Australia'. This definition was in the same terms as section 5, which applies in this case. That is, the statutory test has never been a 'time limit as imposed by law'. Instead, it has always been a 'limitation as to time imposed by law'. Sections 4(a), 5A, 21A and 26A, along with many of other sections within the same Divisions and Subdivision were deleted and re-inserted into the FATA in 2015: see Foreign Acquisitions and Takeovers Legislation Amendment Act 2015 (Cth) (2015 Amendment Act) Schedule 1.
It is unnecessary to consider whether, under section 5(1)(b)(i) and (ii) of the FATA, the holder of a permanent visa to remain in Australia 'indefinitely, is limited as to time as imposed by law. In this regard section 43 of the FATA provides that a foreign person seeking to acquire an interest in Australian land is a 'significant action' for which notification is required under that Act. Regulation 38, in Subdivision D of Division 3 of Part 3 (Exemptions) of the FAT Regulations provide that where a foreign person, as specified in that regulation, seeks to acquire an interest in residential land, this is excluded from the operation of section 43 (a 'significant action'). Included in the foreign persons specified in regulation 38 is a foreign person, who at the time of the acquisition is the holder of a permanent visa under the Migration Act. Regulation 28 in Subdivision 1 of Division 3 of Part 3 provides that the provisions in Division 3 of Part 3 apply to the provisions of the FATA other than the definition of 'foreign person' in section 4 of that Act. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2025

Foreign Acquisitions and Takeovers Legislation Amendment Act 2015(Cth)

Foreign Acquisition and Takeovers Act 1975(Cth)

State Revenue Legislation Amendment (Budget Measures) Act 2016(NSW)

Victorian Duties Act 2000(Vic)

Onus of proof

In this application the onus is on the applicant to prove her case: TA Act section 100(3). This requires the applicant to prove, on the balance of probabilities, all matters necessary to enable to Tribunal to answer the statutory question in her favour and if she fails to do so, the assessments the subject of this application will prevail: Cornish Investments Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCATAP 25 at [31]; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 per Allsop P at [87] and [104].

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (13)

Cases Cited (12)